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SUPREME COURT RULES SEX OFFENSE SENTENCES UNCONSTITUTIONAL

Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

Posted on Feb 11, 2015

Part of Ohio’s gross sexual imposition law is unconstitutional in requiring a mandatory prison sentence for offenders when evidence consists of more than a child’s testimony, the Ohio Supreme Court ruled today.

Under the scheme the court overturned by a 6-1 vote, sex offenders must be sent to prison for five years if there is evidence — such as DNA, other witnesses or a confession — beyond the victim’s statements.

When a gross sexual imposition conviction is based solely on the testimony of a child under the age of 13, a prison sentence is not mandatory.

There is "no rational basis" for the differing sentences the court ruled, finding that the law unconstitutionally deprives defendants of due process and, when guilty pleas are involved, their right to a jury trial.

The ruling came in the case of a Columbus man who was convicted in 2012 after pleading guilty to two counts of gross sexual imposition for molesting a 10-year-old girl.

Franklin County Common Pleas Court Judge Charles Schneider declined to sentence Damon Bevly, now 37, to five years in prison despite other evidence consisting of his confession. The judge imposed a three-year sentence.

The Franklin County Court of Appeals overturned Schneider’s ruling after Prosecutor Ron O'Brien appealed, prompting Bevly to turn to the high court. He is scheduled to freed from prison on April 21.

The gross sexual imposition law "is unique in Ohio felony sentencing law in that it enhances the sentence imposed on the offender based on the quantity of evidence presented to prove guilt," wrote Justice Judith Ann Lanzinger.

"But the quantity of evidence or the number of witnesses used to establish guilt is irrelevant to the imposition of punishment," she wrote in the majority opinion.

The mandatory sentence also would have required a jury to make a finding of collaborating evidence, thus depriving those who plead guilty of jury trials, she wrote.

Justice Judith L. French dissented, saying separate sentences based on the amount of evidence are not illegal and that the court majority improperly substituted its "policy" judgment for that of the General Assembly.